By Leslie King O’Neal
One-Sided Process is “Arbitration in Name Only”
When is an alternative dispute resolution process worthy of the name “arbitration?” What are the essential attributes of “arbitration?” In two recent cases the NFL’s “arbitration” process was found too one-sided to be called “arbitration,” allowing the cases to proceed in court.[i] The Florida Supreme Court will consider this existential issue in its upcoming review of the Citizens Property Insurance ADR process in Quintana v. Citizens Property Ins. Corp.[ii] The trial court concluded that the mandatory “arbitration” process Citizens’ insurance policy required for policyholder claims[iii] was invalid on due process grounds.[iv] Therefore, the trial court denied Citizens’ motion to dismiss and motion to compel arbitration. The Third District certified the question to the Florida Supreme Court.
Citizens Property Insurance Policies and the DOAH ADR Process
The Florida Legislature created Citizens[v], a not for-profit, tax-exempt government entity, in 2002 to provide insurance for Floridians who cannot find affordable property insurance coverage in the private insurance market.[vi] Unlike other Florida insurers, policyholders need not give written consent to the Citizens’ arbitration process.[vii] The Citizens policy states that Florida Dept. of Administrative Hearings (DOAH) judges will be the arbitrators.
Due Process Requires Impartial Decision-Maker
Noting that due process requires not only that the decision-maker is impartial, but also that the decision-maker appears impartial, the trial court stated: “If Floridians reasonably conclude that the alternative dispute resolution process on which Citizens seeks to rely . . . is . . . merely a well-dressed scheme to dispose of policy-holders’ claims quickly, quietly and on the cheap, the appearance-of-impropriety prong of the due process guarantee may be implicated.”[viii] As the Flores court observed, evident partiality does not require actual partiality; partiality may be inferred from facts inconsistent with impartiality.[ix] The trial judge (a Latin scholar) described the symbiotic relationship between DOAH and Citizens as manus manum lavat, (“one hand washes the other”) adding to the appearance of impropriety.[x]
Is the DOAH ADR Process “Arbitration?”
The DOAH ADR process described in the policy endorsement states that it is “mandatory arbitration pursuant to the Revised Florida Arbitration Code.” [xi] However, the arbitration process described in the endorsement does not incorporate many of Chapter 682’s provisions. Unlike typical arbitrations, the policyholder has no input into arbitrator selection. DOAH judges are not trained in resolving insurance policy claims.
No Arbitrator Duty to Disclose
The endorsement does not mention the arbitrators’ duty to disclose any known facts that a reasonable person would consider likely to affect the person’s impartiality as an arbitrator in the arbitration proceeding, such as “an existing or past relationship with any of the parties to the agreement to arbitrate or the arbitration proceeding.”[xii] Nor does it mention that, upon a party’s timely objection, an arbitrator’s failure to disclose such facts may be grounds for a court to vacate an award.[xiii]
Can DOAH Arbitration Awards be Vacated?
The Citizens’ process does not include any description of grounds for vacating arbitration awards as listed in §682.13(1), Fla. Stat. Reportedly, some DOAH judges have denied motions asking them to report potential conflicts.[xiv] Nevertheless, §682.013(4), Fla. Stat. makes the policy’s arbitration agreement subject to the Revised Florida Arbitration Code, raising questions about the DOAH judges’ disclosure obligations and validity of their awards.
Two recent cases involving former NFL coaches raised issues about fairness in arbitration proceedings. See last year’s post: NFL Penalized for Unfair Arbitration Clause
SCOTUS declined to review the Flores case, letting the lower court decision stand. The NFL did not appeal the Nevada Supreme Court ruling. In both cases the former coaches asserted that the NFL’s arbitration process, making the NFL commissioner the sole arbitrator and allowing him to change the arbitration rules without notice, was unconscionable and unenforceable. The Nevada Supreme Court described the NFL’s process as “arbitration in name only.”[xv]
Arbitration Requires Independent Forum
Discussing the importance of an arbitration tribunal’s independence, the Flores court noted, “A basic assumption of ‘traditional arbitral practice’ and ‘the norm of bilateral arbitration as our precedents conceive of it’ is that even while arbitration is a matter of contract, an arbitral forum is an independent forum that is separate from the parties to the dispute.” (emphasis in original).[xvi] The Flores court also noted, “The FAA authorizes federal courts to vacate arbitration awards “where there was evident partiality . . . in the arbitrators.” It would make little sense if the same statute nonetheless required the courts to compel parties to arbitrate their claims in a forum that is indisputably partial.” (emphasis in original).[xvii]
NFL Clause is Procedurally & Substantively Unconscionable
In Gruden,[xviii] the Nevada Supreme Court held the NFL’s arbitration clause was both procedurally and substantively unconscionable. It found the contract was procedurally unconscionable because Gruden could not negotiate the terms of the NFL Constitution, which contained the arbitration clause. “Procedural unconscionability is . . . present when ‘circumstances of the contract’s formation created such oppression or surprise that closer scrutiny of its overall fairness is required.’ ’’[xix] Because the NFL had the sole power to choose the arbitrator (here, the NFL Commissioner), the agreement was substantively unconscionable also. “The ability of the stronger party to select a biased arbitrator is unconscionable, even if the stronger party may ultimately choose a neutral arbitrator.”[xx]
Takeaways
- Merely labeling an ADR process as “arbitration” does not mean a court will enforce it as an arbitration clause.
- In evaluating an ADR process, courts look for basic fairness and an impartial decision-maker at a minimum.
- While arbitration agreements are favored, not every “arbitration” clause is worthy of the name.
[i]Flores v. New York Football Giants, Inc., 104 F.4th 205 (2d Cir. 2025) (cert. den. May 26, 2026); National Football League v. Gruden, No. 86047 (Nev. Aug. 11, 2025)
[ii] (11th Judicial Circuit in and for Miami-Dade County, Florida, Case No: 2025-20098-CA-01) (Order Denying Motion to Dismiss and Motion to Compel Arbitration, May 7, 2026)
[iii]Policy Endorsement CIT DP 03151023, titled “Alternative Dispute Resolution, Division of Administrative Hearings” states, “A proceeding before the State of Florida, Division of Administrative Hearings (DOAH) is an alternative dispute resolution, by mandatory arbitration pursuant to the Revised Florida Arbitration Code.”
[iv] Plaintiffs claim that the policy’s mandatory arbitration procedure, held before Citizens’ bedfellow agency [DOAH] in the Florida government’s executive branch created an appearance of impropriety inconsistent with Plaintiffs’ due process rights under Art. 1 §9, Fla. Const.
[v] See §627.351(6) Fla. Stat.; Shari Freeman, One Hand Washes the Other: Citizens, the DOAH Endorsement and the Separate Justice System Built for Florida’s Insurer of Last Resort (July 2026)https://www.linkedin.com/pulse/one-hand-washes-other-citizens-doah-endorsement-separate-freeman
[vii] Under “Section 627.70154, a Florida property insurance policy, except one issued by Citizens, may not require mandatory binding arbitration without consumer protections that include an actuarially sound premium discount and the policyholder’s separate signed consent acknowledging the rights being waived.” Id.
[viii]Order dated May 7, 2026.
[ix] Flores, supra, note I, at footnote 54, citing United States v. Int’l Bhd. of Teamsters, 170 F.3d 136, 147 (2d Cir.1999) (explaining that “evident partiality” does not require “actual partiality”); Pitta v. Hotel Ass’n of New York City, Inc., 806 F.2d 419, 423-24 & n.2 (2d Cir. 1986) (explaining that evident partiality may be “infer[red] from objective facts inconsistent with impartiality” and that “[t]he relationship between a party and the arbitrator may, in some circumstances, create a risk of unfairness so inconsistent with basic principles of justice that the arbitration award must be automatically vacated”).
[x] Noting that “Citizens provides DOAH with much of its work and with much of its revenue for such work.” (May 7, 2026, Order, p. 4).
[xi]Florida adopted the Revised Florida Arbitration Code (Chapter 682, Florida Statutes) effective July 1, 2013. The Revised Code is based on the 2000 Revised Uniform Arbitration Act.
[xii] §682.041(1)(b) Fla. Stat.
[xiii]§682.041(4) Fla. Stat.
[xiv] Shari Freeman, supra, note vi.
[xv]Flores v. New York Football Giants, Inc., supra note i,
[xvi]Flores v. New York Football Giants, Inc., supra note i, citing Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 940 (4th Cir. 1999) (noting that arbitration is “a system whereby disputes are fairly resolved by an impartial third party” and that a “scheme whereby one party to the proceeding so controls the arbitral panel” is not arbitration, but rather “a sham system”).
[xvii]Id. As noted above, this is also true under the Florida Revised Arbitration Act.
[xviii] (Case No. 86047) (Nev. Aug. 11, 2025)
[xix] Gruden, supra note i, citing OTO, LLC v. Kho, 447 P.3d 680, 690 (Cal. 2019).
[xx]Gruden, supra note I, citing Beltran v. AuPairCare, Inc., 907 F.3d 1240, 1257-58 (10th Cir. 2018) (holding a party’s discretion to choose which arbitration agency to use rendered the arbitration clause unconscionable).
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